Bonjour v Cachet Holdings Pty Ltd t/as Mulberry Tree Childcare (No 3)
[2023] FedCFamC2G 5
Federal Circuit and Family Court of Australia
(DIVISION 2)
Bonjour v Cachet Holdings Pty Ltd t/as Mulberry Tree Childcare (No 3) [2023] FedCFamC2G 5
File number(s): PEG 318 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 11 January 2023 Catchwords: PRACTICE AND PROCEDURE – Discovery of documents – whether discovery in the interests of the administration of justice – lateness of application – proximity of hearing – where earlier application for subpoena for production of same or similar documents - relevance and scope of discovery
INDUSTRIAL LAW – Fair work – general protections application
Legislation: Fair Work Act 2009 (Cth) ss 70, 340, 545, 546
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 5(a), 176, 190(1)
Federal Circuit Court of Australia Act 1999 (Cth) s 45
Occupational Safety and Health Act 1984 (WA) s 20
Workers’ Compensation and Injury Management Act 1981 (WA)
Cases cited: Abrahams v Qantas Airways Ltd (No 2) [2007] FMCA 639; (2007) 210 FLR 314
Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314; (1995) 22 AAR 261; (1995) 134 ALR 51; (1995) 39 ALD 48
Bonjour v Cachet Holdings Pty Ltd t/as Mulberry Tree Childcare [2022] FedCFamC2G 129
Bonjour v Cachet Holdings Pty Ltd t/as Mulberry Tree Childcare (No 2 [2022] FedCFamC2G 604
COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020; (2021) 365 FLR 1
Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020; (2021) 361 FLR 340
Gallagher v BHP Billiton Nickel West Pty Ltd [2016] FCCA 3367
Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116
Harwood v Harwood [2015] FCCA 1058; (2015) 297 FLR 159
Vinden v Wrong Fuel Rescue Pty Ltd [2019] FCCA 1091
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of last submission/s: 21 December 2022 Date of hearing: 21 December 2022 Place: Perth Applicant: In person Counsel for the Respondent: Mr French Solicitor for the Respondent: Jackson McDonald ORDERS
PEG 318 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANNABEL BONJOUR
ApplicantAND: CACHET HOLDINGS PTY LTD T/AS MULBERRY TREE CHILDCARE
Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
21 December 2022
THE COURT ORDERS THAT:
1.The Applicant’s application for discovery accepted for filing on 13 December 2022 be dismissed.
2.The Reasons for Judgment in relation to Order 1 be published from Chambers at a later date.
3.Costs, if any, be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
Application in a Proceeding
Before the Court is an Application in a Proceeding (“Discovery Application”) filed by the applicant, Ms Annabel Bonjour (“Ms Bonjour”) on 12 December 2022, and accepted for filing on 13 December 2022, seeking orders for discovery (“Discovery”) of documents (“Documents”) as follows:
1.Within 7 days, the Respondent give discovery of any documents that fall within the categories described in Schedule A hereto.
The Documents described in Schedule A to the Discovery Application are as follows:
1.All documents (including but not limited to emails, notes, drafts and letters) exchanged between Amy Blick, Leanne Polletta, Sharon Cassidy and Ross Morgan and between 25 September 2018 and 24 July 2020 relating to:
(a)the Bullying Allegations (as defined by paragraph 7 of the Amended Response filed 30 March 2022);
(b) the applicant’s workers compensation claim;
(c)the purported reasons for termination described in paragraph 9 of the Amended Response (and the Particulars thereto).
2.All draft and final versions of the respondent’s Staff Grievance Policy and Procedure dated from 25 September 2018 to 24 July 2020.
3.All draft and final versions of the respondent’s Staff Handbook from 25 September 2018 to 24 July 2020.
4.All documents relating to if and when the terms of the Staff Grievance Policy and Procedure and the Staff Handbook were communicated to the applicant and/or agreed to by the applicant, including but not limited to:
(a)the applicant’s offer of employment letter dated in or around May 2011;
(b)all records (insofar as they relate to the Staff Grievance Policy and Procedure and the Staff Handbook) relating to the applicant’s induction in or around May 2011;
(c)performance appraisal and professional development plans completed from 1 May 2011 to 24 July 2020;
(d)training records including Staff Handbook Tests (insofar as they relate to the applicant and to the Staff Grievance Policy and Procedure and the Staff Handbook) from 1 May 2011 to 24 July 2020.
On 18 December 2022 Ms Bonjour emailed the chambers of the presiding judge to advise:
Having considered the matter further, I no longer seek the discovery of documents as described in Category (1) of Schedule A of my application.
The Discovery Application was heard on 21 December 2022. At hearing it was further clarified that the documents in category 2 were to be provided by Mulberry Tree, except insofar as draft versions were sought, with Ms Bonjour no longer pressing for draft versions. It follows therefore that categories 3 and 4 are still in dispute.
At the hearing of the Discovery Application the following orders (“December 2022 Orders”) were made:
1.The Applicant’s application for discovery accepted for filing on 13 December 2022 be dismissed.
2.The Reasons for Judgment in relation to Order 1 be published from Chambers at a later date.
3. Costs, if any, be reserved.
These are the Reasons for Judgment referred to in order 2 of the December 2022 Orders.
Litigation History
At the outset it is convenient to set out the litigation history of the matter.
The Originating Application and Form 2 were filed by Ms Bonjour on 23 October 2020.
Following a failure to mediate a resolution in conference before a Registrar of the Court, orders were made by the Court differently constituted on 3 August 2021 for:
(a)the filing of affidavits by Ms Bonjour by 29 November 2021, by Mulberry Tree by 31 January 2022, and Ms Bonjour in reply by 21 February 2022;
(b)for objections to affidavits, list of documents to be produced and relied on at hearing, and advice of witnesses required for cross examination, to be provided by each party not less than 28 days prior to the hearing; and
(c)for outlines of submissions and list of authorities to be filed by Ms Bonjour and Mulberry Tree respectively 21 and 14 days prior to hearing, and for an outline of submissions in reply to be filed by Ms Bonjour seven days prior to hearing, so by 16 and 23 April 2022 and 1 May 2022 respectively.
With respect to the filing of affidavits the Court orders of 3 August 2021 were not complied with, and the Court, by consent on 24 November and 9 December 2021, extended time for the filing of affidavits. On 21 January 2022, following the filing of an Application in a Proceeding, the Court ordered a stay of compliance with the Court’s orders of 3 August, 24 November and 9 December 2021.
The matter was listed, by consent, for a two day final hearing on 9 and 10 May 2022 pursuant to order 1 of the Court’s orders of 3 August 2021.
On 18 January 2022 Ms Bonjour filed an Application in a Proceeding seeking interlocutory orders in the following terms (reproduced unaltered):
1. Extension of time to appint legal representative to take the case forward
2. Adjournment of trial dates to be relisted upon further application.
On 16 February 2022 the Court made orders (“February 2022 Orders”) to the following effect:
(d)vacating the existing listed final hearing dates of 9 and 10 May 2022 for the originating application;
(e)re-listing the originating application for final hearing on 4, 5, 25 and 26 August 2022; and
(f)amending the dates for the filing of various documents prior to hearing.
On 1 March 2022 the Court published Reasons for Judgment in Bonjour v Cachet Holdings Pty Ltd t/as Mulberry Tree Childcare [2022] FedCFamC2G 129 (“Bonjour (No 1)”), setting out the reasons for making the February 2022 Orders, which included that:
(a)it would be preferable if Ms Bonjour was able to be represented by a lawyer, and that it would take some time for a lawyer to be appointed and to become familiar with the matter: at [18] per Judge Lucev; and
(b)the hearing was, on the basis of a proposed amended pleading, likely to take four and not two days as then listed, and this could be achieved with a relatively minimal but unavoidable delay: at [22] per Judge Lucev.
An amended Form 2 (“Amended Form 2”) was filed on 8 March 2022, together with a Statement of Claim:
(a)alleging that the respondent Cachet Holdings Pty Ltd t/as Mulberry Tree Childcare (“Mulberry Tree”) terminated Ms Bonjour’s employment as an assistant early childhood educator on 24 July 2020 contrary to the General Protections provisions of the Fair Work Act 2009 (Cth) (“FW Act”);
(b)seeking an order for compensation under s 545 of the FW Act for Mulberry Tree’s alleged contravention of s 340 of the FW Act; and
(c)seeking an order pursuant to s 546 of the FW Act for the imposition of a pecuniary penalty for Mulberry Tree’s alleged contravention of s 340 of the FW Act.
On 30 March 2022 Mulberry Tree filed a Response which annexed a Response to Statement of Claim denying that Ms Bonjour was entitled to any relief at all.
The affidavits for hearing required to be filed by the February 2022 orders were all filed by 31 May 2022 save for any affidavit in reply by Ms Bonjour.
Two applications in a proceeding were filed by Ms Bonjour on 25 June 2022 and listed for hearing on 1 July 2022: one to extend time for the filing of an affidavit in reply, and the second for leave to adduce expert medical evidence.
The application in a proceeding with respect to an extension of time for the affidavit in reply related to an order made in the February 2022 Orders providing for any affidavit in reply to be filed by 14 June 2022.The extension of time for filing of the affidavit in reply was not opposed by Mulberry Tree, and in those circumstances the Court made an order on 1 July 2022 extending time to 4 July 2022 for the filing of the affidavit in reply. It is unnecessary for present purposes to deal with the application in a proceeding for leave to adduce expert medical evidence. (See Bonjour v Cachet Holdings Pty Ltd t/as Mulberry Tree Childcare (No 2) [2022] FedCFamC2G 604 (“Bonjour (No 2)” published on 29 July 2022.)
Ms Bonjour filed her affidavit in reply on 1 July 2022.
Ms Bonjour and Mulberry Tree filed their submissions for hearing on 5 July 2022 and 12 July 2022 respectively, and Ms Bonjour filed her submissions in reply on 19 July 2022.
On 22 July 2022 Ms Bonjour filed a subpoena to produce documents (“Subpoena to Produce”) addressed to Leanne Maree Polletta, requiring that on 10.00am on 5 August 2022 the following documents be produced at the hearing, which was listed to commence on 4 August 2022:
1. a copy of the subpoena
2. Statement of Umbreen Naz Ali dated 12 September 2019
3. Mulberry Tree Staff Grievance Policy and Procedure 2018
4. Mulberry Tree Staff Grievance Policy and Procedure 2019
5. Mulberry Tree Staff Grievance Policy and Procedure 2020
6. Versions of the Mulberry Tree Staff Handbook from 2011 to 2020
7.Minutes of meeting held on or about 1 February 2019 as referred to by Leanne Polletta in paragraph 17 of her affidavit dated 31 May 2022
8.Email sent to Leanne Polletta on or about 1 February 2019 as referred to by Leanne Polletta in paragraph 17 of her affidavit dated 31 May 2022
9.Email sent to Amy Louise Blick (nee Morgan) on or about 1 February 2019 as referred to by Leanne Polletta in paragraph 17 of her affidavit dated 31 May 2022
10.Copy of the Applicant Annabel Bonjour’s employee personal file containing the following:
a. Offer of employment to the applicant Annabel Bonjour made in 2011
b.Induction Checklist completed by the applicant Annabel Bonjour in 2011
c.Staff Handbook Tests or Questionnaire completed by the applicant Annabel Bonjour from 2011 to 2020
d.Performance appraisal and professional development plans for the applicant Annabel Bonjour from 2011 to 2020
e.Employment training records for the applicant Annabel Bonjour from 2011 to 2020
f.Record of any incidents, injury, trauma and illness during the course of the applicant Annabel Bonjour’s employment
At the hearing of the Discovery Application Ms Bonjour:
(a)said that she withdrew the Subpoena to Produce because Mulberry Tree’s solicitors said that she had “sent it to the wrong person … [and she] had to send it to the owner. So then [she] sent another letter requesting for these documents”. When pressed, Ms Bonjour said that she had sent an email on 4 August 2022, but it appears this email was not sent to the Court; and
(b)confirmed that she did not seek to rely upon the Subpoena to Produce because Mulberry Tree’s solicitors had said that she had sent it to the wrong person and that she had requested for these documents to be provided again.
Because of reasons associated with judicial hearing workloads and outstanding judgments it became necessary on 25 July 2022 to relist the final hearing to 30 January and 1, 2 and 3 February 2023.
On 19 December 2022 Ms Bonjour filed an outline of submissions (“Ms Bonjour’s Written Submissions”) and list of authorities in support of the Discovery Application.
On 20 December 2022 Mulberry Tree filed an affidavit of Ms Renae Harding (“Harding Affidavit”) and an outline of submissions (“Mulberry Tree’s Written Submissions”) in support of Mulberry Tree’s objection to the Discovery Application.
The Discovery Application was heard on 21 December 20022, and at hearing the December 2022 Orders were made: see [5] above.
Submissions
Ms Bonjour’s Submissions
In Ms Bonjour’s Written Submissions Ms Bonjour submitted that:
(a)detailed final hearing affidavits have been filed by Ms Bonjour and Mulberry Tree;
(b)nothing in the affidavits filed by Mulberry Tree nor in a letter of 6 December 2022 (“December 2022 Letter”) suggested it had included in its affidavits all documents relevant to the matters in issue;
(c)Mulberry Tree had therefore chosen which documents to include and which not to include;
(d)the December 2022 Letter does not suggest that the documents sought do not exist, and Mulberry Tree has simply refused to provide them;
(e)if discovery is not ordered, Ms Bonjour’s only option for obtaining further documents would be to ask, when cross-examining Mulberry Tree’s witnesses, whether any such further documents exist and if the existence of further documents is identified in cross-examination this is likely to cause significant delays and further costs as:
(i)Mulberry Tree will need to obtain copies of the documents;
(ii)both parties (including any legal representatives) will need time to consider them; and
(iii)the witnesses will not be able to be excused until these things have happened, as further cross-examination may be required once the documents have been considered;
(f)the documents sought are, by their nature, documents that are solely in the possession of Mulberry Tree; and
(g)the costs of discovering the documents is unlikely to be significant, and probably significantly less than the costs of contesting the Discovery Application. The categories are limited in scope, and it would be reasonably expected that all or the vast majority of the documents would have already been produced to Mulberry Tree’s solicitors in the course of preparing its defence and affidavits.
In oral submissions at the hearing of the Discovery Application Ms Bonjour submitted that:
(a)with regards to the staff handbook, the 2018 and 2019 versions of the staff handbook are relevant, as during that time she made complaints of bullying and harassment, as well as reports of breaches of policies and procedures internally to the relevant personnel, and that is why she needed the 2018 and 2019 versions of the staff handbook;
(b)it was in 2020 that her employment was terminated, and Mulberry Tree had provided the 2021 version of the staff handbook, and in the 2021 version a lot of policies have been introduced or changed that did not exist during the time of her employment;
(c)regarding the staff handbook tests:
(i)she was required to answer these from the time she started her employment with Mulberry Tree in 2011;
(ii)they reflect the policies that existed at the time that were communicated to her; and
(iii)they would not be too difficult to locate, as they would be in her personal file;
(d)the performance appraisal and the professional development plans were requested because they will show that her work performance was always at the desired level, “if not exceeding … that”; and
(e)she had been conferring with Mulberry Tree’s solicitors since August 2022 and they kept getting back to her saying that either she needed to reframe her request, which she did, that they asked for more time to provide the documents, and that they had so far had around five months to locate these documents and to provide them for the proceedings.
Mulberry Tree’s submissions
Mulberry Tree submitted that:
(a)it was far too late in the proceedings to grant an order for discovery, particularly when:
(i)there was the default starting point position of no discovery; and
(ii)Ms Bonjour has been on notice of these issues effectively since pleadings and the evidence were filed, and
the initial request for documents were far broader than what was in the Discovery Application and what remains is the residual of what could not be agreed;
(b)it did not have additional versions of the staff handbook and that as set out in the Harding Affidavit it would be quite difficult to retrieve earlier versions of the staff handbook from Mulberry Tree’s archives, and that the staff member responsible for providing these, Ms Leanne Polletta, was on leave until 3 January 2023 and she estimates it would take two to three weeks to obtain those additional versions of the staff handbook;
(c)there was one version, which is currently attached to the affidavit of Ms Polletta, a 2021 version, but because earlier versions are not easily accessible Ms Polletta would have to go trawling through the archives to find them;
(d)it was important to balance the onerous nature of the exercise against what possible benefit it might produce, particularly so close to trial, and that Ms Bonjour’s request was not relevant at all. It was not alleged anywhere in the pleadings, the statement of claim or in Mulberry Tree’s response that Ms Bonjour was dismissed because she breached the staff handbook or any policy or procedure;
(e)there were two instances of adverse action that are alleged, and they were the removal of Ms Bonjour from a staff Facebook page while she was going on parental leave and, secondly, her dismissal in 2020, but that it was not alleged by either Ms Bonjour or Mulberry Tree, that these instances of adverse action, the removal from the Facebook group or the termination, happened because she breached the staff handbook;
(f)Ms Bonjour said that she was dismissed from her employment because she had:
(i)pressured a fellow employee to be a witness in a workers compensation proceedings;
(ii)on a public social media forum insinuated a conflict of interest between Mulberry Tree and the regulator of childcare centres; and
(iii)alleged breaches of policies and procedures by Mulberry Tree and its employees and other employees;
(g)the earlier versions of the staff handbook are not relevant and it would be a “pointless and yet still burdensome exercise” to have Mulberry Tree spend some weeks trying to find or locate earlier versions of the staff handbook or documents that will not assist this Court in resolving the issues in dispute;
(h)category 4 is “simply and manifestly completely irrelevant” and that performance appraisals, records relating to Ms Bonjour’s induction in 2011, training records in respect of Ms Bonjour and the application for staff grievance policy and procedure and her original offer of employment are all manifestly entirely irrelevant; and
(i)Mulberry Tree has put on evidence about the difficulty of obtaining such documents which go back to 2011.
Consideration
Objects of the legislation
The Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) provides that its objects are, relevantly, “to ensure that justice is delivered by federal courts effectively and efficiently”: s 5(a). That object must be read together with the provisions of the FCFCOA Act relating to the overarching purpose of the civil practice and procedure provisions which include in s 190(1) of the FCFCOA Act that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: see COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020; (2021) 365 FLR 1 at [13] to [19] and [21] per Judge Lucev.
Section 176
Section 176 of the FCFCOA Act provides as follows:
(1)Interrogatories and discovery are allowed in relation to family law and child support proceedings in the Federal Circuit and Family Court of Australia (Division 2).
(2)However, interrogatories and discovery are not allowed in relation to any other proceedings in the Federal Circuit and Family Court of Australia (Division 2), unless the Court or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(3)In deciding whether to make a declaration under subsection (2), the Federal Circuit and Family Court of Australia (Division 2) or a Judge must have regard to:
(a)whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b)such other matters (if any) as the Court or the Judge considers relevant.
Section 176 of the FCFCOA Act is effectively in the same terms as the former s 45 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the authorities on s 45 of the FCCA Act are equally applicable to s 176 of the FCFCOA Act.
The Court notes that for the purposes of s 176(3) of the FCFCOA Act allowing discovery must be “fair and expedient”. In Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314; (1995) 22 AAR 261; (1995) 134 ALR 51; (1995) 39 ALD 481 (“Adams”) the Full Court of the Federal Court was dealing with fisheries management legislation, and in particular, a provision which provided that certain objectives “must be pursued by the Minister and the Authority in the administration of the Act, … and by the Authority in the performance of its functions”. Each of the five objectives was conjoined by the use of the word “and”. The Full Court of the Federal Court held that the use of the word “must”, and the linking of each of the five objectives with the word “and”, meant that each objective must be pursued “individually” by the Minister and by the Authority: Adams FCR at 332 per Sheppard J (with whom Tamberlin J FCR at 334 and Lehane J FCR at 336 agreed). Adams was followed by this Court (then the Federal Circuit Court of Australia) in Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020; (2021) 361 FLR 340 at [25] per Judge Lucev in relation to the conjoining nature of “and” for the purposes of various paragraphs in reg 5.19(2) of the Migration Regulations 1994 (Cth) joined by “and”.
The use of “must” and “and” in s 176(3) of the FCFCOA Act therefore indicates that regard must be had to both the criterions of being “fair” and being “expedient” in determining whether to allow discovery.
Discovery in this Court
In Gallagher v BHP Billiton Nickel West Pty Ltd [2016] FCCA 3367 (“Gallagher”) at [31]-[36] per Judge Lucev the then Federal Circuit Court of Australia set out the considerations in relation to an application for discovery and observed as follows:
31.Relevant considerations to be taken into account in determining whether to make a declaration under s.45 of the FCCA Act that it is in the interests of the administration of justice to order discovery were summarised in Abrahams v Qantas Airways Ltd (No. 2) [2007] FMCA 639; (2007) 210 FLR 314 at [25]-[26] per Lucev FM (by reference to what was then the Federal Magistrates Act 1999 (Cth)) as follows:
“25. In summary, it appears that in order to obtain an order for discovery in this Court the Court must determine on the available evidence that it is in the interests of the administration of justice to do so, and in making that determination must have regard to whether allowing discovery would be likely to contribute to the fair and expeditious conduct of the proceedings, and such other matters as the Court considers relevant. Those other matters might include:
(a)the relevance of any documents sought to be discovered;
(b) the volume of documents sought to be discovered;
(c)whether there is a court book containing relevant documents, and the extent to which relevant documents are included in the court book;
(d) whether discovery would narrow the issues;
(e) whether both parties seek discovery;
(f) whether there is consent to discovery;
(g)whether discovery is “of benefit” in the litigation; and
(h)the effect of discovery on litigants, especially, vulnerable litigants.
26. The categories of relevant factors for the purposes of s.45(2)(b) of the FM Act are obviously not closed.”
32.In Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116 (“Hartnett Legal Services”) the Federal Court dealt with the issues of relevance and disclosure generally for the purposes of s.45 of the FCCA Act and r.14.02(2) of the FCC Rules, and observed at [33] per Rangiah J that:
“33Fourthly, it would be quite inconsistent with s 45 of the FCC Act to construe “disclosure generally” as importing a wide test of relevance. The Peruvian Guano test was formulated on the basis of a desire to “make the rule as large as we can with due regard to propriety”: Peruvian Guano at 63. In contrast, s 45 operates to cut down the circumstances in which discovery may be ordered. It would be inconsistent with s 45 to interpret “discovery generally” as referring to the traditional test for discovery when, as Lucev FM observed in Abrahams, traditional discovery is generally prohibited in the Federal Circuit Court.
34 In summary, an order for ‘disclosure generally’ under r 14.02(2)(a) of the FCC Rules is:
‘(a)limited to disclosure of documents that are, or have been, in the disclosing party's possession, custody or control; and
(b)limited to documents that are directly relevant to the issues raised by the pleadings or in the affidavits.
“35That is not to say that it is beyond the power of the Court to make a more expansive order where it is in the interests of the administration of justice to do so, but no such order was made in this case.”
33.In Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd(ACN 002 792 163) & Ors v Woolworths Ltd (ACN 000 014 675) [2015] FCA 1520 (“Colgate-Palmolive”) the Federal Court dealt with an application for discovery made in October 2015, in relation to proceedings commenced on 12 December 2013, and in relation to which an eight week trial was due to commence in June 2016: Colgate-Palmolive at [1]-[2] and [18] per Wigney J. The Federal Court observed that the issue of discovery had first been raised in February 2014, and was again agitated in July and August 2014, but that no interlocutory application seeking discovery was sought at the latter time, and that the relevant party advised that the issue would be re-considered after the filing of non-expert evidence-in-chief by the respondent (the applicant, ACCC, being the party seeking discovery).
34.Discovery of certain documents in relation to what was described as “New Zealand data” arose for the first time in September 2015. It would appear that it had not previously been an issue: Colgate-Palmolive at [8]-[11] per Wigney J.
35.In Colgate-Palmolive the Federal Court was concerned about the effect of the late application for discovery upon the eight week trial date listed for commencement in June 2016, and the possibility that that trial date might be lost: Colgate-Palmolive at [19]-[20]. Ultimately, the Federal Court concluded that the discovery application “has simply been made too late in the day”: Colgate-Palmolive at [21] per Wigney J. The Court concluded at [23] per Wigney J that:
“23In my opinion, given the delay in seeking discovery, the difficulties any such order may cause to the existing timetable and hearing date, the added complexity that may arise as a result of this additional aspect of the case, and the, at best, uncertain relevance and importance of the material, the discovery order is not warranted.”
36.A number of observations might be made in relation to Colgate-Palmolive. Firstly, that although in respect of a much larger case, the discovery sought was limited to a single category of documents. Secondly, and again although a much longer trial, the trial was still eight months away when the Federal Court rejected the discovery application by reason, in part, of the proximity of the hearing. Thirdly, the Federal Court took into account the amount of time which had elapsed between the proceedings commencing, and discovery having first been raised, and then the particular discovery application having arisen, there being two months before discovery was raised after the proceedings had commenced, and approximately 21 months before the particular discovery application in relation to the New Zealand data was raised.
In Vinden v Wrong Fuel Rescue Pty Ltd [2019] FCCA 1091 (“Vinden”) at [10]-[13] per Judge Kendall the then Federal Circuit of Australia observed as follows:
10.Overall, there is a reluctance in this Court to grant orders for discovery and interrogatories. Indeed, in Vanden Driesden v Edith Cowan University (2012) 226 IR 452, the Court referred to the power as one that is “rarely used”.
11. Section 45(1) of the FCCA Act is a general statutory prohibition on discovery.
12.Before granting a declaration under s.45 of the FCCA Act, the Court will specifically consider s.45(2). That section provides:
(2) In deciding whether to make a declaration under subsection (1), the Federal Circuit Court of Australia or a Judge must have regard to:
(a) whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b) such other matters (if any) as the Federal Circuit Court of Australia or the Judge considers relevant.
13.In this Court, there appears to be a presumption that the “fair and expeditious conduct of the proceeding” does not require discovery: Devine Marine Group Pty ltd v Fair Work Ombudsman [2013] FCA 442 at [54]. That does not mean, however, that it will not ever be given.
Exception not the rule
Discovery is very much the exception and not the rule in the procedure of this Court, and traditional discovery is generally prohibited: Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116 (“Hartnett Legal Services”) at [33] per Rangiah J; Gallagher at [32] per Judge Lucev; Vinden at [10] per Judge Kendall.
Lateness of Discovery Application
For a declaration for an order for discovery to be made in this case would be neither fair nor expedient in circumstances where the Discovery Application was made just seven weeks before a four day hearing listed to commence on 31 January 2023, and in circumstances where:
(a)the 31 January 2023 listing had been in place since 25 July 2022;
(b)the matter had previously been listed for hearing in May and August 2022 and had been adjourned from May to August as a consequence of applications in a proceeding made by Ms Bonjour and adjourned in August 2022 and relisted to January and February 2023 as a result of reasons associated with judicial hearing workloads and outstanding judgments which meant it became necessary to relist the hearing;
(c)the seven weeks between the making of the Discovery Application and the 31 January 2023 listing includes the Christmas and New Year’s Day holiday period, and, given the timing of the December 2022 Orders, is more realistically a working period of less than five weeks before hearing; and
(d)there was unchallenged evidence that the officer at Mulberry Tree who would have to find the records was on leave until 3 January 2023, thereby further reducing the working period in which the documents would have to be found, provided and analysed for hearing purposes to just four weeks.
The above circumstances must also be considered in light of the facts that:
(a)pleadings were complete (including a response from Ms Bonjour) on 30 March 2022; and
(b)all affidavits for hearing were filed by 1 July 2022,
and in circumstances where pleadings were complete and the evidence all filed, an application for discovery with about four working weeks left before hearing cannot generally be considered fair or likely to expedite a hearing in this Court.
Subpoena to Produce
That Ms Bonjour was aware that she might need the documents the subject of the Discovery Application many months before the Discovery Application was made is evident from the Subpoena to Produce filed on 22 July 2022 which seeks the same documents as are now the subject of the remaining disputed parts, categories 3 and 4, of the Discovery Application. The fact that the Subpoena to Produce is no longer pursued by Ms Bonjour does not assist her. Further, and in any event, it has long been the case that a subpoena cannot be used as a substitute for discovery: Harwood v Harwood [2015] FCCA 1058; (2015) 297 FLR 159 (“Harwood”) at [33]-[35] per Judge Manousaridis.
Scope of documents sought
The scope of the documents sought in the Discovery Application is not of itself so large as would make it difficult for Mulberry Tree to be able to comply with in normal circumstances. As indicated above, however, the period of time between the hearing of the Discovery Application and the four day hearing listed to commence on 31 January 2023 would make compliance difficult. This is compounded by the fact that the employee of Mulberry Tree who would be able to access the Documents, but who is on leave until 3 January 2023, has indicated to Mulberry Tree’s lawyers: Harding Affidavit at [10]-[11], that in relation to the category 3 documents:
(a)Mulberry Tree did not save separate versions of the Staff Handbook;
(b)changes that were made to the Staff Handbook were made in the current original version of the document and would override the earlier version of the document;
(c)there was no standard practice to archive different versions of the Staff Handbook;
(d)it is possible that there may be copies of the earlier versions of the Staff Handbook in Mulberry Tree’s internet system – known as “Matrix” – but she is not sure that that is the case;
(e)Matrix was overhauled while she was on maternity leave and she did not therefore know where the copies of the Staff Handbook were stored, if they were stored, in Matrix;
(f)it would take her two to three weeks (after she returns from leave on 3 January 2023) to search through Matrix to see if any versions of the Staff Handbook have been stored in Matrix.
It follows from the previous paragraph that even if there are versions of the Staff Handbook on Matrix for the relevant dates they would not be able to be produced until a week or two before the four day hearing listed to commence on 31 January 2023, and in respect of which pleadings have long since closed and affidavit evidence long ago filed, and this is undesirable from a case management perspective.
Relevance
In relation to relevance the Court notes that the Statement of Claim (drafted by Ms Bonjour’s then lawyer) alleges adverse action by Mulberry Tree contrary to s 340 of the FW Act by:
(a)removing Ms Bonjour from the Mulberry Tree Tuart Hill – Staff Facebook page with effect from 4 September 2019 thereby allegedly depriving her of the benefit of being able to stay up to date with industry updates, staff development training, policies, staff events and rosters because of her exercise, or proposed exercise, of workplace rights by reason of:
(i)the reporting of a workplace hazard in compliance with her statutory duty under s 20 of the Occupational Safety and Health Act 1984 (WA) (“OSH Act”);
(ii)the taking of proposed unpaid parental leave pursuant to s 70 of the FW Act;
(iii)a proposed workers compensation claim under the Workers’ Compensation and Injury Management Act 1981 (WA) (“WCIM Act”);
(b)terminating Ms Bonjour’s employment with Mulberry Tree effective 24 July 2020 by reason of:
(i)the reporting of a workplace hazard in compliance with her statutory duty under s 20 of the OSH Act;
(ii)a proposed workers compensation claim under the WCIM Act.
The Documents in categories 3 and 4 are not obviously relevant to the allegations of adverse action made in the Statement of Claim. In 10 pages of well-crafted submissions filed on 5 July 2022 (for the purposes of the final hearing then listed to commence in August 2022) Ms Bonjour makes no mention of any of the documents in categories 3 and 4, and on a close reading of the Submissions it is not evident how any of those documents might be relevant to the claims made by Ms Bonjour under s 340 of the FW Act. Further, even if the documents were relevant, relevance alone is insufficient to warrant a discovery order: Hartnett Legal Services at [27] per Rangiah J; Abrahams v Qantas Airways Ltd (No 2) [2007] FMCA 639; (2007) 210 FLR 314; Vinden at [56] per Judge Kendall.
Narrowing of issues and benefit to litigation
The documents sought do not appear to contribute to any narrowing of the issues. Rather, it appears, particularly from Ms Bonjour’s Written Submissions, that they might expand the issues sought to be agitated at final hearing. At this late stage, with pleadings and affidavits filed months ago, it is not in the interests of the administration of justice for the case management of this matter to possibly be disrupted by making an order for discovery of documents which have no obvious relevance to the issues to be determined on the pleadings: see [45] above. Further, to do so would result in an outcome contrary to the objects and the over-arching purpose of the civil practice and procedure provisions in the FCFCOA Act.
Consent
The Court notes that Mulberry Tree has:
(a)facilitated, as best it could, discovery of documents in categories 1 and 2; and
(b)not consented to the discovery of documents in categories 3 and 4.
Conclusion and Orders
Most of the factors set out and considered above weigh heavily against the making of a declaration that an order for discovery is in the interests of the administration of justice, and a finding that the fair and expeditious conduct of these proceedings requires such a declaration. The Discovery Application is best described as “too little too late”, and as rendering discovery neither fair nor expedient.
It was for the above reasons that an order dismissing the Discovery Application was made in the December 2022 Orders.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 11 January 2023
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